Coastal states have compared themselves to owners of orchards from which DWFNs have been allowed to pick the apples. This argument implies that at no point does the party coming to pick the apple own the land, the trees and the apples (or the ecosystem, the fishery and the fish stock). Until the apple is picked (or the fish is caught), the holder of the access right only owns the opportunity to pick the apple (extract the fish), and even then only on a temporary and time-limited basis. The apple picker (fishing operator) only owns the apple (individual fish) once it has been removed – it is then their property as raw material. If the operator fails to pick the apple (extract the fish) during the time allocated by the arrangement, then it remains with the owner of the orchard (fishery). At no point is a claim made by the operator – in practice or in law – to the reproductive potential over time of the ecosystem, the orchard/ fishery or even individual apples/ fish and all of their future outputs.
Introduction
In our published analysis, we examine the function of fisheries access arrangements (FAAs) and how they relate to catch allocation discussions at the Indian Ocean Tuna Commission (IOTC). Through an analysis of the Law of the Sea (UNCLOS), publicly available FAAs, and national legislation, we show how historical catch taken in coastal State waters under FAAs does not imply historical rights for distant water fishing nations (DWFNs), and we briefly discuss the ramifications for coastal States and DWFNs.
Determining how historical catch taken by foreign fishing vessels within coastal State waters should be attributed, is the most contentious element of the ongoing catch allocation negotiations in the IOTC. Negotiations have revolved around two opposing proposals: coastal states have advocated that: “all historical catches taken within an area under the national jurisdiction of a CPC shall be attributed solely to the CPC with jurisdiction over that area, regardless of the flag of the vessels that took such catches”. In contrast, the EU and some DWFNs have proposed that historical catch from an EEZ should be attributed based on the flag of the vessel by which it was taken, even if this was a foreign vessel inside an EEZ.
For the legal review of FAAs, we examined publicly available FAAs, namely, EU Sustainable Fisheries Partnership Agreements (SFPAs) for tuna, and the Pacific Islands Multilateral Tuna Treaty with the United States (FFA-US MLTT). At the time of writing this paper (2023), the EU had 12 active SFPAs in place, with Cape Verde, Cook Islands, Côte d’Ivoire, Gabon, Guinea-Bissau, Madagascar, Mauritania, Mauritius, São Tomé and Principe, Senegal, Seychelles, and the Gambia12 (a 13th SFPA, renewed in late 2023 with Kiribati, was not part of this analysis).
Analysis
UNCLOS provides coastal States with sovereign rights to explore, exploit, conserve and manage the living resources of their exclusive economic zones (EEZs). These rights (and concomitant obligations) remain perpetually with the coastal State. The analysis of the 12 EU fishing access arrangements and the national legislation of their respective parties shows that these arrangements do not even mention the possibility of historical rights. They grant a right of access to EU distant water fishing vessels for a specific duration and do not transfer ongoing rights over the resources fished.
Our analysis of the EU SFPAs and related national legislation does not reveal any reference to the transfer of enduring rights from the coastal State to the flag State. None of the EU arrangements mentions future catch history. Permission to fish in the EEZ is limited to a specified period and only grants access, not ongoing rights.
The EU proposal to attribute historical catch caught within EEZs mainly to flag States is therefore not contemplated in UNCLOS nor in national legislation. It is also not addressed in FAAs negotiated to facilitate foreign fishing access to EEZs.
Flag State attribution for EEZ and high seas
If adopted at the IOTC, this model of attributing catch from a coastal State’s EEZ to a foreign flag would radically alter the operation of tuna fisheries and the implementation of FAAs in the Indian Ocean. It would dramatically increase the power of the historically dominant EU, and effectively enshrine them with ownership—or at least control—of the region’s tuna fisheries. Over the course of 40 years of fishing in the Indian Ocean, the EU fleet and EU-owned vessels have fished around three million tons of yellowfin, skipjack and bigeye tuna in the waters of coastal states.
Attributing EEZ catch history to foreign flag States for the purpose of allocation would then further undermine future access benefits for the coastal State. It would limit any fishing within their EEZ to mainly DWFNs such as the EU that held substantial quota. This would also increase the negotiating power of the EU in access fee negotiations as competition would be limited to DWFNs with quotas, which would primarily favour the EU.
Assuming that other non-EU DWF vessels have some history fishing in IOTC coastal waters, then their DWF flag State would receive some catch history from EEZ fisheries. However, they would likely lose flexibility over the choice of fishing grounds and risk increased costs for future access arrangements to EEZs. Flag State attribution for EEZs would likely force other non-EU DWF flag States with minimal catch history to purchase transferable quota from the EU, if surplus was available, in addition to the payment of access fees to the coastal State. It would effectively lock in existing arrangements with little flexibility to respond to climate change, access arrangement instability, or changing business models and industry demand. DWFNs would receive some catch history for high seas fisheries, but this is also the case under the coastal State proposal.
Coastal State attribution for the EEZ and flag State attribution for the high seas
To be consistent with the jurisdictional framework established in UNCLOS and with existing practice in other regions, the IOTC would need to attribute historical EEZ catch to the coastal State and historical high seas catch to the flag Stat. It would also minimise any impact on the future operation of the region’s tuna fisheries, or on future FAAs. In this scenario, DWFNs would continue to fish in EEZs through FAAs, and have flexibility to evolve and grow their operations, utilising quota allocated to the coastal State. This would also be consistent with Article 62(4) of the UNCLOS, which provides that coastal States can establish quotas of catch for fishing in the EEZ. When fishing on the high seas, IOTC members would fish utilising their flag State quota.
Furthermore, separating coastal states and high seas flag State attribution is also supported by Article 61 of UNCLOS. Article 61 establishes the rights and duties of coastal States, including sustainable management of marine resources. If catch taken within a coastal State’s EEZ is attributed to the flag State, the agency of the respective coastal States would be seriously undermined and, hence, would contradict UNCLOS.
Attributing historical EEZ catch to the coastal State also supports the development aspirations of coastal developing States, ensuring that coastal states have the potential to develop their fisheries if they plan to do so. This is also aligned with global efforts to achieve an equitable distribution of benefits and wealth from initiatives such as the Sustainable Development Goals or Ocean Equity calls from the high-level panel of States for a sustainable ocean economy.
Conclusion
The EU proposal to attribute EEZ historical catch to a foreign flag State is not supported by UNCLOS or the terms of FAAs. Neither UNCLOS nor FAAs provide a legal basis for using historical catch taken by DWFN vessels in a coastal State EEZ to allocate RFMO quota to the flag State. The EU proposal would effectively destroy the sovereign rights granted by the UNCLOS to coastal States and perpetuate historical inequities, while also undermining the interests of other DWFNs,
We suggest that it is time for IOTC parties to seek inspiration from other RFMOs whose allocation processes reflect area-based management and other modern principles of fisheries management. To achieve this, however, a change of paradigm is needed, particularly from the EU. They need to move beyond their focus on notions of historical entitlements as this perpetuates legacies of resource dispossession and domination.
We also argue that it is time for members of RFMOs—and especially of the IOTC – to move beyond the historical catch debate. They need to resolve their differences or consider other ways to allocate participatory rights in shared fisheries.
